In the run up to the Bush v. Gore election I came of the opinion that the Supreme Court, and nominations therefor, had become the most critical issue in presidential elections. The Democrats were still in the habit of nominating high quality judges who possessed good judicial temperaments and fine legal minds. President Clinton had nominated Justices Breyer and Ginsburg, both on the liberal side but very good, fair minded Justices. Republicans, on the other hand, had taken to nominating partisan political operatives. President Reagan had nominated Justices Kennedy, O’Connor, Rehnquist, and Scalia. Justice Thomas, an acolyte of Justice Scalia, had been nominated by President George H.W. Bush, as had Justice Souter. Justice Stevens, a fine justice and a Liberal, had been nominated by President Ford in more bi-partisan times. There would very soon be a demonstration of the political activism of this court.
Republicans and Democrats, and their nominees for the Court, were and still are at considerable odds mainly over social issues, maybe also on issues of criminal procedure. On matters economic they generally share a top-down Neo-Liberal mindset, although the cost-benefit analysis of the more Liberal members of the Court features more of an element of social justice. The conservative members of the Court are more on the Libertarian side, with a heavy states’ rights component. For better or worse, all of the justices, and indeed all of our politicians except for outliers like Bernie Sanders, seem to agree on the importance of globalizing the world’s economies and favoring the interests of large corporations and their investor class.
The 2000 Election
Candidate Al Gore came out ahead in the straight up vote count, and appeared to be winning the Electoral Vote count too, but something happened. In Florida, where the governor was candidate George W. Bush’s brother, the counting of the very close popular vote was stalled over hanging chads and other improbable details. "Hanging chads" is still my definition of ridiculous. How does a chad come to hang? Answer: by someone poking that spot with the poker, as in voting for that spot, that's how. Any other chads hanging? No? Then it's a vote, asshole. Both sides lawyered up and the stalemate went on for days. The Supreme Court stepped in and ultimately they decided the issue. George W. Bush was declared the winner in Florida, and thus took the election.
The vote went like this:
For: Justices Kennedy (appointed by Reagan), O’Connor (Reagan), Rehnquist (Reagan), Scalia (Reagan) and Thomas (George H.W. Bush).
Against: Justices Breyer (Clinton), Ginsburg (Clinton), Souter (George H.W. Bush) and Stevens (Gerald Ford).
This activist court decided the election, and George W. Bush became the President of the United States. We all know how that turned out. We’ll be paying for it for a long time, with nothing positive to show for that lost eight years. The loss in dollars is variously reported to be between four and ten trillion dollars, resulting from the unnecessary reduction in tax revenue, the senseless, counterproductive wars in the Middle East, the losses of the financial crisis of 2008 and the resulting bail-outs, and the years of negative economic growth that were all directly attributable to George W. Bush and the policies of the Republican Party. So thanks for that, Reagan appointees.
The Serendipity of the Post-2000 Court
Appointments by President’s Bush and Obama have had a beautiful symmetry to them. With two appointments each, all successful nominees have replaced justices with similar legal styles and political inclinations.
President Bush the Younger put John Roberts on the court after Chief Justice Rehnquist, and Justice Sam Alito after Justice O’Connor. Let’s not even get into Bush’s unsuccessful nomination of White House counsel Harriet Miers.
President Obama has put Justice Sotomayor on the Court, after Justice Souter, and Justice Kagan, after Justice Stevens.
No major shifts in the conservative/liberal balance there.
Imagine what would have happened if candidate John McNasty, I mean McCain, had won in 2008. (I am informed, and believe, that “McNasty” was McClain’s high school nickname.) Before that election I was feeling very Chicken Little about the potential effect on the Supreme Court. If McCain had appointed two justices to replace Justices Souter and Stevens there would have been a seven to two conservative majority, and the sky would actually have fallen.
Our current Supreme Court is very politically active. The Republican appointed conservative majority decides which results best serves their political point of view and then invents legal rationales to support their decisions. Sure, corporations can have religious views and act on them to the detriment of the rights of others! Take that, homosexuals and women! Sure, giving unlimited money to politicians is a free speech issue, a First Amendment right! Take that, democracy! Sure, we don’t need that Voting Rights Act anymore, we’re Post Racial! Take that, minorities! This is just the beginning.
Very soon the honorable ladies and gentlemen of the Court will be revisiting a well settled but still politically volatile issue, the Affordable Care Act. I say well settled because it was passed by both houses of congress, signed by the President, and it has already withstood a test in the Supreme Court. It’s the law of the land, according to our precious rules. That’s as settled as law gets. But the political winds changed with the recent mid-term elections, so it appears that the issue is back on the table.
The ACA has performed very well in the real world, increasing the percentage of the insured, bringing healthy, young paying customers into the pool of the insured and starting to bring overall health care costs (spending) down. It has enhanced health security for millions of Americans and it has brought increased efficiency to the American economy in general. It is, however, politically anathema to conservatives, and it is, however, associated with a president who is being subjected to unrelenting, irrational opposition by conservatives in general and Republicans in particular. Our current court is siding with the irrational forces on this one. There is a good chance that this cabal of politically motivated, activist justices will void an important element of the ACA, the tax credit for health insurance purchased pursuant to the act. That would destroy all of the benefit of it and we’d be back to square one.
The recent mid-term election saw the turnout of eligible voters at about 37% (thirty-seven percent). Of these, approximately half voted for Republicans. Slightly more than half, allowing Republicans to achieve majorities in both houses of the national legislature and both houses of the legislatures of many states. Now we are being told that this was a mandate for Republicans, that this eighteen or so percent of American voters are the voice of the American Public, demanding a return to failed Republican policies and illustrating a general rejection of President Obama’s policies.
What will happen in 2016 cannot be seen clearly at this time. The presidency, congress, where will it all go? The voter turnout in the mid-terms is a bad sign. Are people really so apathetic? Are they so disillusioned? And the ones that actually voted, are they really so ignorant about what is going on in America? Are they really so afraid of things like immigrants, homosexuals, science, Muslims and black Americans? The pattern of voting in the mid-terms seems to indicate that people have no objection to losing their civil and political rights, that they prefer corporate prosperity over their own prosperity, that they are thrilled to work harder for less, that they enjoy health insecurity, that the infrastructure of America is fine just as it stands, and that they believe that short term profits to corporations are more important than long term economic security for the United States. So there is reason to be concerned about the 2016 election.
Beyond 2016, of course, it is even more difficult to see what will happen. Who gets elected? Who dies, and when? What unforeseen events will overtake us, and by whom will they be manufactured? It would be too much to expect that any possible result of the 2016 election would precipitate the sudden appearance of peace, equality, security and prosperity. But given the choice between the alleviation and the exacerbation of the very real horrors of our current situation, I’ll take alleviation if I can get it.
Time will tell, I suppose.